Article 5 - freedom from arbitray detention Flashcards
1
Q
what is Article 5
A
- freedom from arbitray detention
- everyone has the right to liberty and security of person
2
Q
what type of right is it
A
- is a limited right - a right that can be restricted (derograted from) in certain situations
- also positive right - this place a positive obligation on the state to; ensure detentions are lawful and ensure procedual safeguards are in place
3
Q
article 5 overview
A
- 5(1)(a-f)
- after court conviction
- arrest
- educational supervision
- prevent spread of infection
- vagrants , drug addicts , alcholics
- prevent illegal entry
- deportation
- 5(2) - arrest procedures
- 5(3) - after arrest/court procedures
- 5(4) - trial and challenge (appeal route)
- 5(5) - remedies
4
Q
ARTICLE 5(1)
A
- sets out a number of situations where the right to liberty can be lawfully restricted
5
Q
ARTICLE 5(1)(a)
A
- lawful of detention of a person after conviction
6
Q
ARTICLE 5(1)(b)
A
- lawful arrest or detention of a person for a non-compliance with a court order
- E.G a warrant , breaching bail, not paying a fine
7
Q
ARTICLE 5(1)(c)
A
- lawful arrest or detention of a person on reasonable suspicion of a crime
8
Q
ARTICLE 5(1)(d)
A
- the detention of a minor (child) by lawful order for educational supervision
9
Q
ARTICLE 5(1)(e)
A
- detention of a person to prevent the spread of disease, of a person of unsound mind, of alcholics , drug addicts or vagrants
10
Q
ARTICLE 5(1)(f)
A
- the lawful arrest or detention of a person to prevent him entering the country illegally or before deporting him back
11
Q
article 5(4)
A
- challanging the lawfulness of detention
- access to court - the detainee can challange the lawfullness of their detention
- can be by court or tribunal (impartial)
- reviewing prison detention - parole boards decide on the sutability for prisoner before realse
- determinate sentence - fixed period after which there is no chance for appeal
- inderterminate sentence - offender sentenced to minimum term (the tariff) but realsed when parole board deem it safe
- reviewing detention of people with unsound mind
12
Q
article 5(5)
A
- if detention is arbitary then the victim of that unlawful detention or arrest shall have a right to compensation
- if there is a breach of article 5(1) or 5(4) then this compensation is mandatory (compensation must be awarded)
- compensation is normally only rewarded for finacial loss rather than fustration or emotions suffered
13
Q
restrictions in the uk
A
- arrests
- control orders and TPIMs
- care
- parents and children
- police and crowd control
- stop and search
14
Q
deprivation of liberty
restriction
A
- merely restricitng a persons liberty will not be considered deprivation,
- ECtHR will decide on three facts
- length of time
- detainee consent
- reason given by state
- Gussardi v Italy - suspceted to be in the mafia, ordered to live on island with no contact to outside world , big deprivation of liberty
15
Q
Arrest rules (make it lawful)(ECHR)
restriction - arrest
A
- Article 5(1)(b)
- article 5(1)(c)
- article 5(2)
- article 5(3)
16
Q
article 5(1)(b)
restriction - arrest
A
- allows for lawful arrest or detention of individuals who breach court orders or fail to fulfil an obligation prescribed by law
- for example - for non-payment of tax , contempt of court and breach of bail condition
17
Q
article 5(1)(c)
restriction - arrest
A
- allows for the lawful arrest or detention of a person suspected of having commited an offence
18
Q
article 5(2)
restriction - arrest
A
- promt reasons given
- to allow a person to know why they have been arrested in a language he understands
- doesnt have to be given in full at the time of the arrest but later
19
Q
article 5(3)
restriction - arrest
A
- brought promply before a judicial officer
- be brought before the udge within a reasonable time or promptly (depends case by case)
20
Q
PACE 1984 - police and criminal evidence
restriction - arrest
A
- (1) a constable can arrest without a warrant;
- (a) - anyone about to commit an offence
- (b) - anyone in the act of commiting an offence
- (c) - anyone reasonably suspicoius to commit
- (d) - anyone reasonably suspicious to be commiting
- (2) reasonable grounds to suspect that an offence has been committed , suspect being guilt
- (3) constable may arrest without a warrant if;
- (a) - anyone who is guilty of the offence
- (b) - has reasonable grounds for suspecting they are guilty
21
Q
section 28 PACE 1984 - police and criminal evidence
restriction - arrest
A
- must be told of the fact of the arrest
- should be cautioned according to CJPOA
- should be told to remain silent and warned about their interference
- must be told of rights inculding right to consult a solicitor - access is denied it can be thrown out of court
22
Q
BAIL act 1976
restriction - arrest
A
- states that when the police have refused bail - the suspect must be brought before the magistrates “at the earliest oppurnituity” for the matter of bail to be decided by court
23
Q
control orders and TPIMs - 2005
restrictions - control order and TPIMs
A
- in 2005 HOL ruled that holding forgein terror suspects in prison without charge/trial was unlawful
- gove brought in control order scheme - allows the home secretary to impose an almost unlimited range if restrictions on any person suspected of terrosism
- E.G - relocation (Guzzardi v Italy) , 16 hour curfews ,internet bans
24
Q
control order and TPIMs - 2012
restrictions - control order and TPIMs
A
- in 2012 , the government replaced control orders with terroism prevention and investigation measures (TPIMs)
- still no trial needed
- limited to 2 years
- travel ban etc
25
Q
secretary of state for the home department v JJ
restrictions - control order and TPIMs
A
- gave an 18 hour curfew
- deprivation of liberty
- breach of article 5
26
Q
secretary state of the home department v E
restrictions - control order and TPIMs
A
- gave 12 hour curfew
- not a deprivation
27
Q
care
restrictions - care
A
- there will normally be no deprivation of liberty if a person of sound mind/cared by parents or friends or relatives or foster homes
- what happens if they have learning difficulties or mental capacity
- if there are under constant supervision without the option to leave then this amounts to a deprivation of liberty
28
Q
cheshire west v P
restrictions - care
A
- had cerebal palsy and downsyndrome (ripping nappy off and was restrainted)
- acid test - periodical reviews for care facilities
- continious control
- .2. constant supervision
- .3. not free to leave
- need to review based on best interest
- authorised under - mental capacity act 2005
29
Q
P and Q v surrey county
restrictions - care
A
- several learning difficulties and couldnt leave without supervision
- two sisters
- people with mental incapacity have the same right to liberty as a normal person
30
Q
JE v DE
restrictions - care
A
- had a stroke and lived in a care home
- could go as he wished by wanted to live with JE
- deprived of his liberty as not ‘free to leave’
31
Q
parents
restrictions - parents
A
- cant
- not a public body
32
Q
kettling
restriction - police and crowd control
A
where a group of people are held by police in an area in order to control on demonstration
33
Q
mengesha v met police
restriction - police and crowd control
A
- police required a woman to give her name and address before allowing her to leave the kettle
- the kettling itself was justifed and not a deprivation, but requrining this infomation was arbitray
34
Q
Austin v met police
restriction - police and crowd control
A
- police kettled demonstrators for over 7 hours
- no breach of article 5 as the measures were taken in good faith , were proportionate and enforced for no longer than neccessary
35
Q
moos v met police
restriction - police and crowd control
A
- G20 protestors were kettled
- kettling should only be used as a last resort when violence is immenant
36
Q
code A police codes of practice
restriction - stop and search
A
- “an officer must not search a person if theres no specifc power to do so. This applies even if the person would consent to being searched. This only expectation to this search on entry to premises where constent to being searched is a condition of entry”
- must be an on a legal basis and be lawfully applied
37
Q
section 1 and 2 of PACE 1984
restriction - stop and search
A
- set out powers of stop and search
- reasonable grounds for suspecting a specifc person/vehicles
- ‘can never be supported on the basis of personal factors. it must rely on intelligence or infomation about or some specific behaviour by the person concerned
38
Q
section 60 criminal justice and public order act 1994
restriction - stop and search
A
- gives police the right to search people in a defined area during a specifc time period wen they belive; with good reason that;
- .1. serious violence will take place and it is necessary to use this power to prevent such violence
- .2. a person is carrying a dangerous object
- .3. an incident involvin serious violence has taken place
39
Q
section 44 terroism act
restriction - stop and search
A
- gillian v met police
- claimant stop and searched whilst protesting against an arms fair
- no suspision = arbitary
- allows the police to search people in a specified area during a specfic time if they believe they have a weapon
40
Q
section 60 terroism act
restriction - stop and search
A
- roberts v met police
- claimant stopped and searched under s60 as there was no police report showing a rise in violent crime in this area
- roberts failed to show a valid bus ticket and gave a false name
- she was not moved or restraint or handcuffed and she had not resisted it would have only taken 3 mins
- not a deprivation
41
Q
anti terror measures
evaluations
A
- can still give restrictions of TPIMs (curfew and tagging) - despite no trial or arrest
- still better than control orders
- protects public
42
Q
number of violations
evaluations
A
- between 1959 and 2019 , there were 3982 violations
- 70 from the uk
- justice
- however more aren’t taken seriously
43
Q
deprivation or restriction
evaluations
A
- the word ‘vagrants’ is old and outdated
- not always easy to determin wether there has been a restriction as it depnds on the degree and intensity of the deprivation (guzzardi v italy)
44
Q
care settings (vulnerable claimants)
evaluations
A
- should rights be measured against other people with simialr disabilites, or should they have same rihts as everyone else
- courts should be more cautious - ECHR stands by the vunreable
- good clarification of acid test
- JE and DE - won their case to not be constantly supervised
45
Q
UK police powers - stop and search and crowd control
evaluations
A
- S44 terrosim - 600,000 stop and searches led to 0 convictions
- extremely disproportinate
- but protects public
- past of racisim - no suspiscoun needed
